Supra Vaider Red Carpet, In quid pro quo types of sexual harassment, cases under both Title VII and FEHA have held that the employer is strictly liable for the conduct of its harassing supervisory employees whether or not the employer knew or should have known about the harassing conduct of the employee. See Nichols v. Frank, supra, 42 F.3d at 510. See also Cal. Gov. Code, § 12940(h)(1).
However, in hostile environment types of cases, Title VII and FEHA differ as to employer liability. Under Title VII, the standard used to determine employer liability is whether management level employees knew or should have known of the harassment and remedied it.
EEOC v. Hacienda Hotel (9th Cir. 1989) 881 F.2d 1504, 1515-16, Nichols v. Frank, supra, 42
F.3d at 508. Therefore, an Supra Vaider Red Carpet employer is not strictly liable for a hostile work environment created by its employees unless it knew, or should have known about the hostile work environment. This differs from cases under the FEHA which have held that an employer is strictly liable for the hostile work environment created by its supervisors whether or not it knew, or should have known, about the harassing conduct. All plaintiff needs to show is the fact that the harasser is a supervisor. Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 419, 27 Cal.Rptr.2d 457, 468, Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1052-1053, 58 Cal.Rptr.2d 122.
However, Supra Vaider Red Carpet even under the FEHA, an employer is not strictly liable for punitive damages for a supervisor\'s conduct unless the employer had advanced knowledge of the unfitness of the harassing employee and employed him or her with a conscious disregard of the rights of others, or authorized the wrongful conduct for which the damages were awarded, or was personally guilty of oppression, fraud, or malice. See Kelly-Zurian v. Wohl Shoe Co., Inc., supra, 22 Cal.App.4th at 419, 27 Cal.Rptr.2d at 468. See, also, Cal. Civ. Code, § 3294(b). With a corporate employer, such advanced knowledge, conscious disregard, authorization or act of oppression, fraud or malice must be on the part of an officer, director, or managing agent of the corporation. Whether an employee is a managing agent of a corporation for purposes of imposing punitive damages upon the corporation hinges upon the degree of discretion the employee possesses in making decisions that will ultimately determine corporate policy. Supra Vaider Red Carpet Kelly-Zurian v. Wohl Shoe Co., Inc., supra, 22 Cal.App.4th at 421, 27 Cal.Rptr.2d at 469-70. Therefore, just because a harassing supervisor has the authority to terminate an employee does not necessarily make that supervisor a managing agent of the corporation.
The employer is also not strictly liable for harassment of a plaintiff by her co-workers. See Kelly-Zurian v. Wohl Shoe Co., Inc., supra, 22 Cal.App.4th 397, 27 Cal.Rptr.2d 457. It is only liable for co-worker harassment if the company knew, or should have known, of the conduct and failed to take immediate corrective action.
